citation: "Law Society of Ontario v. Harry Kopyto, 2020 ONSC 35" parties: "Law Society of Ontario v. Harry Kopyto" party_moving: "Law Society of Ontario" party_responding: "Harry Kopyto" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2020-01-07" date_heard: "2019-12-20" applicant:
- "The Law Society of Ontario" applicant_counsel:
- "Brendan van Niejenhuis"
- "Spencer Bass" respondent:
- "Harry Kopyto" respondent_counsel: "Self-represented" judge:
- "Edward P. Belobaba" summary: > The Law Society of Ontario sought a permanent injunction against Harry Kopyto, a disbarred lawyer whose paralegal license application was denied, to prohibit him from engaging in the unauthorized practice of law and provision of legal services, and from holding himself out as capable of doing so. The court found Kopyto repeatedly breached s. 26.1 of the Law Society Act by providing legal advice, drafting documents, and representing clients in various courts and tribunals, including federal courts, and by holding himself out as a "legal agent." Kopyto admitted to these actions and stated he would continue unless formally ordered otherwise. The court granted the permanent injunction, finding the statutory test met and no equitable reasons to refuse. interesting_citations_summary: > The decision provides a clear application of the test for statutory injunctions under s. 26.3 of the Law Society Act, affirming that the RJR-MacDonald common law test for injunctions does not apply. It reiterates that the applicant does not need to prove inadequate damages or irreparable harm, but rather that the respondent has contravened the statute. The case clarifies the scope of "provision of legal services" under s. 1(5) and s. 1(6) of the Act, the limitations of the "unpaid friend exemption" under By-Law 30.4, and the requirements for non-licensees working under a licensee's supervision (By-Law 7.1). It emphasizes the public protection role of the Law Society against unlicensed practice. final_judgement: > The Law Society of Ontario's application for a permanent injunction prohibiting Harry Kopyto from practicing law or providing legal services in Ontario, and from holding himself out as capable of doing so, was granted. A limited sealing order for certain exhibits was also granted. Costs were to be addressed by written submissions if not agreed upon. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2020 decision_number: 35 file_number: "CV-19-617826" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc35/2020onsc35.html" keywords:
- unauthorized practice of law
- legal services
- permanent injunction
- Law Society Act
- paralegal
- disbarred lawyer
- good character
- statutory injunction
- public protection
- By-Law 7.1
- unpaid friend exemption areas_of_law:
- Administrative Law
- Professional Regulation
- Civil Procedure
- Injunctions
cited_cases:
legislation:
- title: "Law Society Act, R.S.O. 1990, c. L.8." url: "https://www.ontario.ca/laws/statute/90l08"
- title: "By-Law 4 – Licensing" url: "https://lso.ca/about-lso/legislation/by-laws/by-law-4"
- title: "By-Law 7.1 – Operational Obligations and Responsibilities" url: "https://lso.ca/about-lso/legislation/by-laws/by-law-7-1" case_law:
- title: "Kopyto v. Law Society of Upper Canada, 2015 ONLSTH 29" url: "https://www.canlii.org/en/on/onlst/doc/2015/2015onlsth29/2015onlsth29.html"
- title: "Kopyto v. Law Society of Upper Canada, 2016 ONLSTA 3" url: "https://www.canlii.org/en/on/onlst/doc/2016/2016onlsta3/2016onlsta3.html"
- title: "Kopyto v. The Law Society of Upper Canada, 2016 ONSC 7545 (Div. Ct.)" url: "https://www.canlii.org/en/on/onscdc/doc/2016/2016onsc7545/2016onsc7545.html"
- title: "Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca391/2014onca391.html"
- title: "Law Society of Upper Canada v. Augier, 2013 ONSC 451" url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc451/2013onsc451.html"
- title: "R. v. IPSCO Recycling Inc., 2003 FC 1518, [2003] F.C.J. No. 1950" url: "https://www.canlii.org/en/ca/fct/doc/2003/2003fc1518/2003fc1518.html"
- title: "RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311" url: "https://www.canlii.org/en/ca/scc/doc/1994/1994canlii117/1994canlii117.html"
- title: "Law Society of Upper Canada v. Coulson, 2013 ONSC 2448" url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc2448/2013onsc2448.html"
- title: "Law Society of Upper Canada v. Dzelme, 2014 ONSC 4652" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4652/2014onsc4652.html"
- title: "Le Barreau du Haut-Canada v. Byrnes, 2017 ONSC 3616" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3616/2017onsc3616.html"
- title: "Law Society of Ontario v. Leahy, 2018 ONSC 4722" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4722/2018onsc4722.html"
- title: "Law Society of Ontario v. Leahy, 2018 ONCA 1010" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca1010/2018onca1010.html"
- title: "Law Society of Upper Canada v. Fingold, 2016 ONSC 5684" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc5684/2016onsc5684.html"
- title: "Borba v. Toronto Transit Commission, 2015 HRTO 329" url: "https://www.canlii.org/en/on/onhrt/doc/2015/2015hrto329/2015hrto329.html"
- title: "Borba v. Toronto Transit Commission, 2016 HRTO 1430" url: "https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto1430/2016hrto1430.html"
- title: "R. v. Madan, 2016 ONCJ 107" url: "https://www.canlii.org/en/on/oncj/doc/2016/2016oncj107/2016oncj107.html"
- title: "Hari Hansraj and Siva Sivanesan v. CAW Canada, 2015 64479 (OLRB.)" url: "https://www.canlii.org/en/on/onlrb/doc/2015/2015canlii64479/2015canlii64479.html"
- title: "Ali v. AVIS Budget Group, 2015 HRTO 1243" url: "https://www.canlii.org/en/on/onhrt/doc/2015/2015hrto1243/2015hrto1243.html"
- title: "Law Society of Upper Canada v. Telecollect Inc., 2001 28009, 56 O.R. (3d) 296 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/2001/2001canlii28009/2001canlii28009.html"
Court File and Parties
Court File No.: CV-19-617826 Date: 2020-01-07 Ontario Superior Court of Justice
Between:
THE LAW SOCIETY OF ONTARIO Applicant
and
HARRY KOPYTO Respondent
Before: Justice Edward P. Belobaba
Counsel: Brendan van Niejenhuis and Spencer Bass for the Moving Party Harry Kopyto in person / Responding Party
Heard: December 20, 2019
Application for Permanent Injunction under section 26.3 of the Law Society Act
[1] This is an application by the Law Society of Ontario (the “Society”) for a permanent injunction under s. 26.3 of the Law Society Act (the “Act”). The Society asks for a court order prohibiting Harry Kopyto from continuing to engage in the unauthorized practice of law and the unauthorized provision of legal services, and from continuing to hold himself out as someone who may practice law or provide legal services in Ontario.
[2] Mr. Kopyto is a former lawyer who was disbarred in 1989. After his disbarment, Kopyto continued to provide legal services. At that time, the provision of legal services falling short of “the practice of law” did not require a person to hold a licence issued by the Society. That changed in 2007 when amendments to the Act came into force requiring persons providing legal services short of practising law to become licensed as paralegals.
[3] Mr. Kopyto applied for a Class P1 paralegal licence as a “grandfathered” candidate, a licensing path made available to those who, like him, had been providing such services prior to the introduction of paralegal regulation. After a lengthy hearing, the Society eventually rejected Kopyto’s application in 2015 on the basis that he failed to meet the good character requirement in the Act and that he was “ungovernable” because of his avowed refusal to follow the rules of the profession. Kopyto v. Law Society of Upper Canada, 2015 ONLSTH 29, at para. 44.
[4] In the course of its decision, the Law Society Tribunal noted that: “If a Class P1 licence is denied, [Kopyto] intends to disregard the law and continue to provide legal services when his help is required”.
[5] Since his paralegal licence was denied, Mr. Kopyto has continued to provide legal services to clients. He has represented, or attempted to represent, clients before various courts and tribunals in Ontario, such as the Ontario Court of Justice, the Human Rights Tribunal of Ontario, and the Ontario Labour Board. Kopyto has selected, drafted, completed, or revised various documents to be submitted for legal proceedings. He has drafted correspondence and court documents for matters in this court, the Federal Court of Canada, the Federal Court of Appeal and the Supreme Court of Canada – services that only lawyers are entitled to provide.
[6] The evidence before the court is uncontroverted that Mr. Kopyto has repeatedly been in breach of s. 26.1 of the Act, which prohibits the unauthorized practice of law or provision of legal services. Indeed, he denies few of the allegations against him and openly admits to providing legal services whenever he considers it just and appropriate to do so. In this proceeding he testified that he would continue to do so in the absence of a court order.
[7] In such circumstances, and for the reasons set out below, a permanent injunction as authorized by s. 26.3 of the Act is necessary and just.
The applicable law
[8] The applicable law is set out in the applicant’s factum.
[9] In Ontario, only licensees under the Act are permitted to practice law or provide legal services in Ontario.
[10] Historically, the Act only governed barristers and solicitors and only contained prohibitions against the unauthorized practice of law. In 2006, the Act was amended to enable the Society to regulate the profession of paralegals. These changes came into force in 2007. Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391, at para. 5. The Act now prohibits both the unlicensed ‘practice of law’ and the unlicensed ‘provision of legal services’.
[11] Section 26.1 sets out the specific prohibitions:
(1) Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario.
(2) Subject to subsections (6) and (7), no person, other than a licensee whose licence is not suspended, shall hold themself out as, or represent themself to be, a person who may practise law in Ontario or a person who may provide legal services in Ontario.
(3) No licensee shall practise law in Ontario or provide legal services in Ontario except to the extent permitted by the licensee’s licence.
(5) A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.
[12] Only lawyers may “practice law in Ontario”. According to s. 1(1) of the Act, “a person who is authorized to practise law in Ontario” is “a person who is licensed to practice law in Ontario as a barrister and solicitor and whose license is not suspended” or a person who is not licensed but “is permitted by the by-laws to practise law as a barrister and solicitor in Ontario”. Pursuant to s. 2 of “By-Law 4 – Licensing” made under s. 62 of the Act (“the By-Law”), only those who hold a class “L” licence are entitled to practice law in Ontario as a barrister and solicitor.
[13] ‘Providing legal services’ is broader. The Act provides guidance on what constitutes the provision of legal services. In s. 1(5), the Act explains that a person provides legal services “if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person”. The Act then expands on this definition:
(6) Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:
Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person.
Selects, drafts, completes or revises, on behalf of a person,
vii. a document for use in a proceeding before an adjudicative body.
Represents a person in a proceeding before an adjudicative body.
Negotiates the legal interests, rights or responsibilities of a person.
(7) Without limiting the generality of paragraph 3 of subsection (6), doing any of the following shall be considered to be representing a person in a proceeding:
Determining what documents to serve or file in relation to the proceeding, determining on or with whom to serve or file a document, or determining when, where or how to serve or file a document.
Conducting an examination for discovery.
Engaging in any other conduct necessary to the conduct of the proceeding.
[14] According to s. 6 of the By-Law, paralegals who hold a valid “P1” licence are entitled to provide various legal services. These include representing parties in proceedings in particular forums, such as Small Claims Court, the Ontario Court of Justice for provincial offences matters, or administrative tribunals. A licensed paralegal may also give a party advice regarding “his, her or its legal interests, rights or responsibilities” with respect to those proceedings.
[15] The By-Law creates a few narrow exceptions for unlicensed individuals to provide legal assistance. In particular, Mr. Kopyto has attempted to rely on the “unpaid friend exemption” on a number of occasions. Section 30.4 sets out a list of individuals who may, “without a licence, provide legal services in Ontario that a licensee who holds a Class P1 licence is authorized to provide” and includes an individual:
i. whose profession or occupation is not and does not include the provision of legal services or the practice of law,
ii. who provides the legal services only for and on behalf of a friend or a neighbour,
iii. who provides the legal services in respect of not more than three matters per year, and
iv. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.
The language of the By-Law referring to this exemption has been identical since at least January 29, 2015, though it was contained in s. 30.5 until June 25, 2015.
[16] Thus, the “unpaid friend exemption” only applies to those whose occupation is not the provision of legal services, who are not paid for their work, and who only act on a maximum of three matters a year. The exemption only permits the individual to provide legal services that a licensed paralegal can provide. The exemption does not apply to the practice of law or the provision of legal services in venues excluded from a paralegal’s practice, such as the Federal Court or the Superior Court of Justice.
[17] Any person who provides legal services without a license and does not fit within one of the listed exemptions contravenes s. 26.1 of the Act.
The test for a statutory injunction under s. 26.3 of the Act
[18] Where the applicant Society has established, on a balance of probabilities, that the respondent is engaging in, or has engaged in, conduct that contravenes s. 26.1 of the Act, the court will issue a permanent injunction under s. 26.3 prohibiting further violations.
[19] Section 26.3 provides as follows:
26.3 (1) On the application of the Society, the Superior Court of Justice may … make an order prohibiting a person from contravening section 26.1, if the court is satisfied that the person is contravening or has contravened section 26.1
[20] In Law Society of Upper Canada v. Augier, 2013 ONSC 451, this court explained why this power to issue a statutory injunction is necessary:
The Law Society has an important role in protecting the public from the activities of unlicensed and unregulated persons holding themselves out to be lawyers and paralegals. The [unlicensed] respondent, for example, is not required to carry professional liability insurance, keep books and records for inspection by the Law Society, or maintain a trust account for client funds that can be audited by the Law Society. Indeed, the Law Society would have no right or ability to carry out a spot audit or any other kind of check in relation to the activities of the respondent, as it would for a licensed legal professional. That is why the Law Society has a duty to seek remedies against unauthorized persons practicing law or holding themselves out as legal professionals. Law Society of Upper Canada v. Augier, 2013 ONSC 451, at para. 9.
[21] This court then went on to describe the test for issuing an injunction under s. 26.3, specifically adopting the test for statutory injunctions that was set out by the Federal Court in IPSCO Recycling, 2003 FC 1518. Where a statute provides a remedy by way of injunction, different considerations govern the exercise of the court's discretion than apply when an attorney general sues at common law to enforce public rights. In other words, the usual test for common law injunctions, the so-called RJR Test does not apply in the context of a statutory injunction. R. v. IPSCO Recycling Inc., 2003 FC 1518, at para. 11.
[22] The following general principles apply when an injunction is authorized by statute:
(i) The court's discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application.
(ii) Specifically, an applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused.
(iii) The court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable.
[23] The test from IPSCO Recycling has been cited and applied in applications for injunctions under the Act. In deciding whether to issue a s. 26.3 injunction, the court focuses on whether the respondent has in fact contravened at least one provision of s. 26.1. Where this is made out, the court generally grants the requested injunction.
[24] The Society bears the burden of establishing that the respondent has violated the provisions of the Act on a balance of probabilities. The respondent’s competence (or lack thereof) is irrelevant - unlicensed individuals are prohibited from practicing law or providing legal services (except for certain limited exceptions) regardless of their competence or motives.
Unauthorized provision of legal services
[25] The Society has presented compelling evidence that Mr. Kopyto provided unauthorized legal services since the denial of his paralegal licence in at least three matters: Carter, Paul and Jones.
(1) The Carter matter
[26] Charlesworth Carter was convicted in absentia of “unfair business practices” under the provincial consumer protection law and a warrant was issued for his arrest. In March 2015, after he was arrested, he contacted Valerie Dye, a personal friend who was also a lawyer. He asked Ms. Dye to assist him with the appeal of his conviction before a judge of the Ontario Court of Justice.
[27] Ms. Dye informed Mr. Carter that she could not represent him because she did not practice criminal law. However, she offered to help him in find a lawyer. She was referred to Kopyto by a process server that she knew. Kopyto agreed to assist, stating that he had experience with similar cases. Kopyto explained that he would prepare the necessary appeal documents but would hire another lawyer for court appearances. In this first conversation, Mr. Kopyto did not inform Ms. Dye that he was not licensed as a lawyer or as a paralegal and she was not aware of his status. She assumed that the process server’s referral had been to a qualified licensee.
[28] Throughout March and April 2015, Ms. Dye withdrew funds from Mr. Carter’s bank account (with his authorization) and transferred them to Mr. Kopyto. She did so on the understanding that these funds were to compensate Kopyto for his preparation of court documents and for Kopyto to cover the fees of Abba Chima, the lawyer that he had retained to handle the court appearances.
[29] During this time, Ms. Dye received various court materials that she believed were prepared by Kopyto and filed them with the court.
[30] In May 2015, Ms. Dye was told by Kopyto that no further work would be done on Mr. Carter’s case without a further retainer, that Mr. Chima would no longer assist, and that the appeal was therefore likely to be dismissed as abandoned. As a result, Ms. Dye attended the Brampton courthouse to obtain an adjournment. At that time, she advised the court that she had never acted for Mr. Carter and confirmed that she was not listed as counsel of record.
[31] In June 2015, Michael Grossman, a lawyer who had taken over Mr. Carter’s matter, contacted the Society and indicated that Kopyto may have been providing unauthorized legal services to Mr. Carter. He provided the Society with emails that contained communications between Kopyto, Ms. Dye, Mr. Carter’s son Yannick Carter, and Mr. Chima. The emails reveal that Kopyto was hired and paid to prepare the documents for the appeal and that he retained Mr. Chima to appear in Court on Mr. Carter’s behalf.
[32] In some of the emails, Kopyto provided advice regarding Mr. Carter’s case to Yannick Carter, including answering questions, providing his opinion on the Crown’s expected strategy, and commenting on the merits of proceeding and of the appropriate course of action for the client. When cross-examined on his affidavit, Kopyto did not dispute that he wrote and sent these emails. In one email, Kopyto writes to Yannick Carter that, in light of his “failure to provide a retainer for further services, no further work is being done with respect to the application to extend the time to appeal and we will advise the Crown that the matter is abandoned”.
[33] Kopyto agrees that he was involved in Mr. Carter’s appeal. He states that he was hired by Ms. Dye and was in a “contractual relationship” with her, albeit based on an oral contract. He admits to drafting court material and being compensated for his work. He also accepts that he was a “conduit” for the purposes of retaining Mr. Chima, that he transmitted instructions to Mr. Chima, and that Mr. Chima was paid “through” him. Finally, he concedes that he offered his suggestions, input, insights, understandings, beliefs, and views on legal principles to Ms. Dye as they applied to the case.
(2) The Paul matter
[34] Mary Paul has been pursuing numerous legal claims since the 1980s regarding allegations that her doctor caused her child to be stillborn. Ms. Paul approached Mr. Kopyto over a decade ago seeking his professional services and, since that time, Kopyto has worked on various aspects of Ms. Paul’s legal claims.
[35] In particular, Kopyto corresponded with the office of the Minister of State and Foreign Affairs on Ms. Paul’s behalf regarding her petition before the Inter-American Commission on Human Rights, identifying himself as a “legal agent”. In 2014, Kopyto assisted in bringing Ms. Paul’s claim before the Federal Court, arguing that the Canadian government had a duty to ensure that her petition was dealt with in a timely fashion. Mr. Kopyto was also involved in Ms. Paul’s subsequent appeal before the Federal Court of Appeal, and her application for leave to appeal to the Supreme Court of Canada. While Ms. Paul was portrayed as self-represented in these matters (including on court documents), Kopyto was assisting her behind the scenes.
[36] In his affidavit, Kopyto acknowledges that he did in fact represent and provide services to Ms. Paul. On cross-examination, Kopyto agreed that whatever services he provided to her “related to and arose out of and in connection with her … legal cases”. He admitted to preparing “all the material” in Ms. Paul’s court cases, including her Statement of Claim in the Federal Court and her Notice of Application for Leave to Appeal and Memorandum of Argument for leave to appeal in the Supreme Court. He also admitted that, with Ms. Paul’s authorization, his secretary signed Ms. Paul’s name on correspondence to the Department of Justice concerning delivering court materials and filing a requisition for a hearing.
[37] In many of the court documents filed before the Federal Court, Federal Court of Appeal, and Supreme Court of Canada, the address for service listed for Ms. Paul is Mr. Kopyto’s business address.
(3) The Jones matter
[38] Catharine Jones brought an action in this court concerning the termination of her employment. In the process of arranging dates for examinations for discovery, Ms. Jones sent an email to opposing counsel that accidentally forwarded an earlier email from Mr. Kopyto to Ms. Jones. In this email, Kopyto supplied her with a draft of the email that was ultimately sent (in her own name) to opposing counsel. Opposing counsel raised her concerns with Morgan J. at a subsequent appearance. Morgan J. concluded that Ms. Jones had been receiving “behind-the-scenes advice from Harry Kopyto” and explained to her that he was unlicensed and that she should refrain from consulting him in the future.
[39] Kopyto admits to providing “assistance” to Ms. Jones and states that he “agreed to assist her with a minimal retainer for anticipated disbursements”. On cross-examination, Kopyto explained that Ms. Jones was referred to him for assistance with her legal claim. He explained that he agreed to perform “legal work” for Ms. Jones on a type of contingency arrangement whereby she would only compensate him with whatever she thought was reasonable if he was successful. She was ultimately able to settle her claim and so she covered his expenses and paid him “somewhat” for his efforts.
(4) Provision of other legal services
[40] The Society also points to a number of reported decisions from various courts and tribunals in Ontario indicate Mr. Kopyto’s further involvement in representing other individuals with their legal disputes, and continuing to do so despite the refusal of his application for a paralegal license.
[41] On March 16, 2015, in Borba v. Toronto Transit Commission, 2015 HRTO 329, the Human Rights Tribunal of Ontario (“HRTO”) concluded that Kopyto was not entitled to act as Ms. Borba’s representative because he was unlicensed and did not qualify under the “unpaid friend exemption” (explained in more detail below). Mr. Kopyto admits that he “has represented [Ms. Borba] and acted on her behalf notwithstanding her inability to retain me financially over a multi-year period”.
[42] In R. v. Madan, 2016 ONCJ 107, a case in which Mr. Madan was convicted of offences under the provincial environmental protection legislation, Kopyto is listed as an “agent” for the defendant. The case was heard on October 3, 2014, September 4, 2015, and January 6, 2016. The reasons for judgment indicate that Kopyto’s involvement included cross-examining a witness.
[43] Finally, Mr. Kopyto appears to have represented Hari Hansraj and Siva Sivanesan in a matter before the Ontario Labour Relations Board. The Board determined on October 5, 2015, that Kopyto could not continue to represent the applicants because he was not licenced to do so and was not their “unpaid friend”.
[44] Kopyto did not deny representing any of these individuals when he was cross-examined and admitted that he did not have a pre-existing social relationship with any of them prior to working for them professionally. He volunteered that he had recently begun to provide legal assistance to another individual who had been shot three times by police officers and faced serious criminal charges. Kopyto declined to identify the individual on the basis that this inquiry was irrelevant.
(5) Holding himself out as capable of providing legal services
[45] Kopyto refers to himself as a “legal agent”. His business cards use this label and indicate that he has an L.L.B.
[46] On December 13, 2018, an investigator from the Society attended at Kopyto’s office. Kopyto identified himself to the investigator and told him: “I am always here. I’m a workaholic and able to help with any legal services”.
[47] Mr. Kopyto claims that much of his work comes from referrals from legal clinics, workers’ advisory boards, lawyers, paralegals, and word of mouth, as well as from media appearances where he appears as “somebody with a legal background”.
(6) Intention to continue providing legal services
[48] In cross-examination, Kopyto readily acknowledged that he intended to continue providing such services to persons he considered to be unable to afford legal services elsewhere and to be suffering injustice. He stated that he would continue this unless and until there is a formal court order prohibiting him from doing so.
Discussion
[49] Kopyto provided legal services to Mr. Carter. Kopyto’s involvement in the appeal of Mr. Carter’s conviction demonstrates multiple instances in which Kopyto provided legal services to Mr. Carter. These include providing legal advice regarding Mr. Carter’s situation and drafting documents with respect to Mr. Carter’s proceedings in the Ontario Court of Justice.
[50] In emails to Yannick Carter, Kopyto provided advice regarding Mr. Carter’s appeal. In doing so, Kopyto applied “legal principles and legal judgment with regard to the circumstances or objectives of a person”, namely Mr. Carter. This is the general definition of providing legal services in s. 1(5) of the Act.
[51] The evidence is also clear that Kopyto drafted the court documents that were filed in relation to Mr. Carter’s appeal before the Ontario Court of Justice. The Act specifically defines the provision of legal services to include selecting, drafting, completing, or revising, on behalf of a person, “[a] document for use in a proceeding before an adjudicative body”. That is precisely what Kopyto did.
[52] Mr. Kopyto attempts to shield himself by claiming that he was hired by a licensed lawyer, Ms. Dye, in relation to Mr. Carter’s appeal and that all of his actions were done at her direction and subject to her supervision, direction, control, and revision. This is not a valid defence for his actions.
[53] Under s. 3(1) of the Society’s By-Law 7.1, licensees are entitled to assign “tasks and functions” in connection with the provision of legal services to a “non-licensee”. However, under s. 1(1), in defining “non-licensees” that are encompassed by this rule, By-law 7.1 sets out that the non-licensee must “expressly” agree with the licensee that the licensee shall have “effective control” over the non-licensee’s provision of services to the licensee. According to s. 1(2), “a licensee has effective control over an individual’s provision of services to the licensee when the licensee may, without the agreement of the individual, take any action necessary to ensure that the licensee complies with the Act, the by-laws, the Society’s rules of professional conduct and the Society’s policies and guidelines”. Further, the licensee must directly supervise the non-licensee pursuant to s. 4(1). These required elements were absent from Kopyto’s relationship with Ms. Dye.
[54] There is no evidence that the parties expressly agreed that Ms. Dye would have “effective control” over Kopyto’s provision of services to Mr. Carter. Indeed, Ms. Dye swears in her affidavit that she never agreed to represent Mr. Carter and she saw her role as merely assisting her friend in finding someone who could represent him, as well as paying that representative while Mr. Carter was incarcerated. She was not effectively controlling or directly supervising Kopyto’s provision of legal services. Kopyto therefore does not fit within the definition of a “non-licensee” to whom Ms. Dye was entitled to assign tasks and functions.
[55] Moreover, s. 6(1)(a) of By-law 7.1 prohibits a licensee from permitting a non-licensee to “give the licensee’s client legal advice”. Thus, even if Mr. Kopyto were acting under the instructions and supervision of Ms. Dye, he still was not permitted to provide legal advice to Mr. Carter – something that he did in his emails with Yannick Carter.
[56] In addition, an unlicensed individual cannot circumvent the prohibitions in s. 26.1 by paying licensees to perform various legal services for clients where those licensees are relying upon and acting on the advice of the unlicensed individual. Thus, Kopyto still breached the Act despite the fact that Mr. Chima, a licensed lawyer, was the one who actually appeared in court on Mr. Carter’s matters. Mr. Chima was acting on the advice of Kopyto who provided his instructions.
[57] Kopyto provided legal services to Ms. Paul. Mr. Kopyto’s provision of legal services to Ms. Paul is not seriously disputed. Kopyto agrees that all the documents that Ms. Paul filed in the Federal Court, Federal Court of Appeal, and Supreme Court of Canada were prepared by him, despite Ms. Paul indicating that she was self-represented. In this way, Kopyto unquestionably “select[ed], draft[ed], complete[d] or revise[d]” documents “for use in a proceeding before an adjudicative body”. These actions fall within the definition of providing legal services in s. 1(6)(2.vii) of the Act.
[58] Further, because Ms. Paul’s matters were before the Federal Court, Federal Court of Appeal, and Supreme Court of Canada, Kopyto’s services even went beyond those permitted of a licensed paralegal, as paralegals are not permitted to draft documents for use in proceedings before those bodies. There are no other exemptions under the By-Law which, on the evidence before the court, would have permitted Kopyto to have assisted Ms. Paul.
[59] While Kopyto claims that Ms. Paul was pleased with his services, there is no requirement in the Act that a client be dissatisfied before an unlicensed individual can be found to have breached s. 26.1 of the Act.
[60] Kopyto provided legal services to Ms. Jones. It is also clear that Mr. Kopyto provided legal services to Ms. Jones. Justice Morgan specifically found that Ms. Jones was receiving legal advice “behind-the-scenes” from Kopyto. Under cross-examination, Kopyto admitted to agreeing to perform “legal work” for Ms. Jones on a form of contingency arrangement, provided she covered his expenses; he also admitted to being paid “somewhat” for this work.
[61] Further, since Ms. Jones’ proceeding was before this court, not even a licensed paralegal would have been permitted to provide her with advice. She would have been required to retain a licensed lawyer. Moreover, Kopyto did not come within the “unpaid friend exemption” in this instance because he was paid for his work.
[62] Kopyto provided legal services in other matters. The reported cases provide numerous examples where Kopyto has represented various individuals before different courts and tribunals. According to s. 1(6)(3) of the Act, representing a person “in a proceeding before an adjudicative body” constitutes providing legal services. An “adjudicative body” includes a provincial court and a tribunal established under an Act of the Ontario Legislature.
[63] A number of reported cases show Kopyto representing multiple individuals: Ms. Borba before the HRTO, Mr. Ali before the HRTO, Mr. Madan before the Ontario Court of Justice, and Messrs. Hansraj and Sivanesan before the OLRB.
[64] After February 3, 2015, Kopyto was not permitted by the Act or the By-law to represent any of these individuals before these bodies. Specifically, in none of these cases did Kopyto qualify under the “unpaid friend exemption” in s. 30 of the By-law.
[65] Firstly, in the cases of both Ms. Borba and Messrs. Hansraj and Sivanesan, the relevant tribunals already considered and expressly rejected Kopyto’s claim that he could represent these individuals as an “unpaid friend”.
[66] Secondly, pursuant to the By-law, the “unpaid friend exemption” only applies to someone who acts “for and on behalf of a friend or a neighbour”. Kopyto admitted that he had no pre-existing social relationship with any of these “clients” and only met them in his professional capacity. They were neither friends nor neighbours.
[67] Thirdly, the “unpaid friend” exemption only allows an individual to provide services in respect of a maximum of three matters a year. In 2015 alone, Kopyto acted on at least five matters - Borba, Ali, Hansraj and Sivanesan, Madan and an unidentified matter before the Workplace Safety and Insurance Board.
[68] Because Kopyto’s representation in relation to these matters did not fall within the “unpaid friend exemption”, they constituted the unauthorized provision of legal services contrary to s. 26.1 of the Act.
[69] Kopyto has held himself out as someone who can practice law or provide legal services. Kopyto has also breached s. 26.1(2) of the Act by holding himself out as, or representing himself to be, “a person who may practice law in Ontario or a person who may provide legal services in Ontario”. Indeed, Kopyto told the applicant’s investigator that he is “able to help with any legal services”.
[70] Further, Kopyto’s business cards note that he has an L.L.B. and that he is a “legal agent”. I agree with the Society that the reference to a law degree and the imprecise term “legal agent” would leave a reasonable (if uninformed) member of the public reading this card with the impression that Kopyto is able to at least provide legal services.
Conclusion
[71] The evidence before this court establishes that Mr. Kopyto has engaged in the unauthorized provision of legal services and has held himself out or represented himself as someone who may practice law or provide legal services in Ontario. Indeed, Kopyto openly admits most of the allegations in this case, conceding that he has drafted court documents, provided legal advice, and represented individuals in proceedings on numerous occasions since the denial of his paralegal license application on February 3, 2015.
[72] The Society has demonstrated, on a balance of probabilities, that Kopyto has repeatedly and continuously breached s. 26.1 of the Act. There are no reasons why this court should not issue an injunction against Mr. Kopyto. There is no evidence that the requested injunction will be inequitable or of questionable utility. To the contrary, Kopyto went out of his way on cross-examination to assert that he would only abide by the Act if there is a formal court order requiring him to do so.
[73] The Society has met the test for the requested injunction to issue. The application for a permanent injunction is granted as set out below.
The sealing order
[74] The Society also requests a term in the order sealing Exhibits “A” and “E” to the affidavit of Peter Stehouwer dated December 18, 2018, found in the application record. As described in the second affidavit of Peter Stehouwer, both exhibits contain information that is potentially subject to the statutory confidentiality protections in s. 49.12 of the Law Society Act.
[75] Exhibit “A” consists of a printed copy of an internal licensing report which contains particulars of certain complainants against the respondent which are potentially subject to protection under s. 49.12. Exhibit “E” consists of a series of emails which include information that may be subject to solicitor-client, or litigation privilege, belonging to Charlesworth Carter. Neither of these documents contain the sort of information that animates the open court principle - the information is relevant to the adjudication of the application but of very limited public interest.
[76] As the second Stehouwer affidavit makes clear, these items were included in the application record in an unredacted form through inadvertence. At the outset of the hearing, Mr. Kopyto asked for an adjournment to file a “reply” to Mr. Stehouwer’s second affidavit. I denied the adjournment request because Mr. Kopyto could not point to anything in this second affidavit that reasonably required a reply – the two-page affidavit simply identifies the errors contained in the main affidavit and provides non-controversial corrections. The respondent’s request for an adjournment appeared to be nothing more than a delay tactic. I agree with the Society that such inadvertence should not prejudice the individuals whose information is otherwise protected by s. 49.12.
[77] The Society’s request for a limited sealing order is granted.
Disposition
[78] The Law Society of Ontario’s application for a permanent injunction prohibiting Mr. Kopyto from contravening s. 26.1 of the Act, and in particular:
i. prohibiting Mr. Kopyto, and any business or business entity that he controls, from practicing law or providing legal services in Ontario, contrary to s. 26.1(1) of the Act, and
ii. prohibiting Mr. Kopyto from holding himself out as, or representing himself to be, a person who can practice law or provide legal services in Ontario, contrary to s. 26.1(2) of the Act
is granted.
[79] Order also to go sealing Exhibits A and E to the Affidavit of Peter Stehouwer dated December 18, 2018 and authorizing the Law Society to file a fresh copy of the application record for purposes of the public record with such exhibits removed or contained in a sealed envelope to remain sealed in the absence of further order of the court, and directing the Registrar to replace the existing application record in the court file;
[80] If the parties cannot agree on the appropriate costs award, they may forward brief, written submissions to my attention - the Law Society to do so within 14 days and Mr. Kopyto within 14 days thereafter.
[81] The factual narrative and applicable law were largely uncontested and were ably set out in the applicant’s material. I am grateful to the applicant for allowing me to use and adapt portions of its filed material in drafting these reasons. I am grateful to the respondent for his courtesy.
Belobaba J. Date: January 7, 2020